The Family Court (Composition and Distribution of Business) Rules 2014

PART 1 Introductory provisions

Citation, commencement and interpretation

1.  These Rules may be cited as the Family Court (Composition and Distribution of Business) Rules 2014 and come into force on 22nd April 2014.

2.—(1) In these Rules—

“the 1991 Act” means the Child Support Act 1991(1);

“appeal” includes an application seeking permission to appeal and an application in the course of the appeal proceedings;

“assistant to a justices’ clerk” has the meaning given in section 27(5) of the Courts Act 2003(2);

“authorised”, except in the context of references to an authorised court officer, means authorised by the President of the Family Division or nominated by or on behalf of the Lord Chief Justice to conduct particular business in the family court, in accordance with Part 3;

“authorised court officer” has the meaning assigned to it by rule 44.1 of the Civil Procedure Rules 1998(3) as applied to family proceedings by rule 28.2(1) of the Family Procedure Rules 2010(4);

“costs judge” means—

(a)

the Chief Taxing Master;

(b)

a taxing master of the Senior Courts; or

(c)

a person appointed to act as deputy for the person holding office referred to in paragraph (b) or to act as a temporary additional officer for any such office;

“financial remedy” has the meaning assigned to it by rule 2.3 of the Family Procedure Rules 2010;

“judge of circuit judge level” means—

(a)

a circuit judge who, where applicable, is authorised;

(b)

a Recorder who, where applicable, is authorised;

(c)

any other judge of the family court authorised to sit as a judge of circuit judge level in the family court;

“judge of district judge level” means—

(a)

the Senior District Judge of the Family Division;

(b)

a district judge of the Principal Registry of the Family Division;

(c)

a person appointed to act as deputy for the person holding office referred to in paragraph (b) or to act as a temporary additional officer for any such office;

(d)

a district judge who, where applicable, is authorised;

(e)

a deputy district judge appointed under section 102 of the Senior Courts Act 1981(5) or section 8 of the County Courts Act 1984(6) who, where applicable, is authorised;

(f)

an authorised District Judge (Magistrates’ Courts);

(g)

any other judge of the family court authorised to sit as a judge of district judge level in the family court.

“judge of High Court judge level” means—

(a)

a deputy judge of the High Court;

(b)

a puisne judge of the High Court;

(c)

a person who has been a judge of the Court of Appeal or a puisne judge of the High Court who may act as a judge of the family court by virtue of section 9 of the Senior Courts Act 1981(7);

(d)

the Senior President of Tribunals;

(e)

the Chancellor of the High Court;

(f)

an ordinary judge of the Court of Appeal (including the vice-president, if any, of either division of that court);

(g)

the President of the Queen’s Bench Division;

(h)

the President of the Family Division;

(i)

the Master of the Rolls;

(j)

the Lord Chief Justice;

“judge of the family court” means a judge referred to in section 31C(1) of the Matrimonial and Family Proceedings Act 1984(8);

“justices’ clerk” has the meaning given in section 27(1) of the Courts Act 2003(9); and

“lay justice” means an authorised justice of the peace who is not a District Judge (Magistrates’ Courts).

(2) In these Rules, references to provisions of the Adoption and Children Act 2002(10) include, as applicable, references to those provisions as modified by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010(11).

PART 2 Composition of the family court

Composition: general

3.—(1) Subject to rules in this Part, the family court shall be composed of—

(a) one of the following—

(i) a judge of district judge level;

(ii) a judge of circuit judge level; or

(iii) a judge of High Court judge level; or

(b) two or three lay justices.

(2) Where paragraph (1)(b) applies, the court shall include, so far as is practicable, both a man and a woman.

Composition: allocation decision

4.  When making a decision on allocation to which rule 20 applies, the family court shall be composed of one or more of the following —

(a) a judge of district judge level;

(b) a judge of circuit judge level.

Composition: appeals heard by a judge of district judge level

5.—(1) Subject to rule 7, the family court shall be composed of a judge of district judge level when hearing an appeal from the decision of the Secretary of State where an appeal is brought under—

(a) regulation 25AB(1) of the Child Support (Collection and Enforcement) Regulations 1992 (Appeals)(12);

(b) section 20(1) (a) or (b) of the 1991 Act to a court by virtue of article 3 of the Child Support Appeals (Jurisdiction of Courts) Order 2002(13) (Parentage appeals to be made to courts).

(2) The family court may be composed of a judge of district judge level when hearing applications in the course of appeal proceedings against decisions of persons referred to in rule 6(2)(b) to (d) or decisions of the court referred to in rule 6(3).

(3) The family court shall be composed of a costs judge or a district judge of the High Court when hearing an appeal against the decision of an authorised court officer.

Composition: appeals heard by a judge of circuit judge level or a judge of High Court level

6.—(1) Subject to rule 7, when hearing an appeal from the decisions of persons referred to in paragraph (2) or the court referred to in paragraph (3), the family court shall be composed of—

(a) a judge of circuit judge level; or

(b) a judge of High Court level where there is a need for such a level of judge to hear the appeal to make most effective and efficient use of local judicial resource and the resource of the High Court bench.

(2) The persons referred to in paragraph (1) are—

(a) a judge of district judge level;

(b) two or three lay justices;

(c) a lay justice; or

(d) a justices’ clerk or an assistant to a justices’ clerk.

(3) The court referred to in paragraph (1) is a magistrates’ court where an appeal is brought under section 111A of the Magistrates’ Courts Act 1980(14) (appeals on ground of error of law in child support proceedings).

Composition: appeals heard by a judge of High Court level

7.—(1) The family court shall be composed of a judge of High Court level when hearing an appeal from the decision of—

(a) the Senior District Judge of the Family Division in financial remedy proceedings;

(b) a district judge of the Principal Registry of the Family Division in financial remedy proceedings or a person appointed to act as deputy or as a temporary additional officer for such a district judge in these proceedings;

(c) a costs judge; or

(d) the Gender Recognition Panel where an appeal is brought under section 8(1) of the Gender Recognition Act 2004(15) (Appeals etc.).

(2) The family court shall be composed of a judge of High Court level (instead of a judge of district judge level or a judge of circuit judge level) where there is—

(a) an appeal against a decision referred to in rules 5 and 6; and

(b) the Designated Family Judge or a judge of High Court level considers that the appeal would raise an important point of principle or practice.

Composition: matters part heard

8.—(1) Paragraph (2) applies where a hearing—

(a) was before two or three lay justices; and

(b) was part heard.

(2) The court which resumes the hearing shall, wherever possible, be composed of the same lay justices as dealt with the previous part of the hearing.

PART 3 Authorisations

Powers to grant authorisations

9.—(1) Paragraph (2) applies to business in such categories as may be specified from time to time by the President of the Family Division.

(2) A judge of district judge level or a judge of circuit judge level may conduct business to which this paragraph applies in the family court only if authorised by the President of the Family Division to do so.

(3) The President of the Family Division may specify the matters referred to in paragraph (1) in directions, after consulting the Lord Chancellor.

(4) A lay justice may conduct business in the family court only if authorised by the Lord Chief Justice to do so.

PART 4 Lay justices: chairmanship of the family court

Interpretation of this Part

10.  In this Part—

“2007 Rules” means the Justices of the Peace (Training and Development Committee) Rules 2007(16);

“BTDC” means the Bench Training and Development Committee established in accordance with the 2007 Rules; and

“FTDC” means the Family Training and Development Committee established in accordance with the 2007 Rules.

Chairman

11.—(1) When the family court is composed of two or three lay justices, it shall sit under the chairmanship of a lay justice who is on a list of approved family court chairmen.

(2) A lay justice may preside before being included on a list of approved family court chairmen only if that lay justice is—

(a) under the supervision of another authorised lay justice who is on the list of approved family court chairmen; and

(b) has completed the training course required by rule 31 of the 2007 Rules.

(3) In this rule “list of approved family court chairmen” means a list kept by a FTDC or, where there is no FTDC, a BTDC in accordance with rules 32 and 35 of the 2007 Rules.

(4) This rule and rule 12 are subject to sections 18(1) and (2) of the Courts Act 2003(17).

Absence of authorised lay justice entitled to preside

12.—(1) The lay justices present may appoint one of their number to preside in the family court to deal with any case in the absence of a lay justice entitled to preside under rule 11 if—

(a) before making such appointment the lay justices present are satisfied as to the suitability for this purpose of the lay justice proposed; and

(b) expect as mentioned in paragraph (2), the lay justice proposed has completed or is undergoing a chairman training course in accordance with rule 31(d) of the 2007 Rules.

(2) The condition in paragraph (1)(b) does not apply if by reason of illness, circumstances unforeseen when the lay justices to sit were chosen, or other emergency, no lay justice who complies with that condition is present.

PART 5 Distribution of business of the family court

General

13.—(1) This Part makes provision for the distribution of business of the family court among the judges of the family court.

(2) Rules 15 and 20 are subject to rule 17.

(3) Rules 15, 16, 17, 18, 19 and 20 make provision regarding the level of judge of the family court to which a matter is to be allocated initially.

(Rule 29.19 of the Family Procedure Rules 2010 makes provision for a judge of the family court to determine that a matter should be heard by a different level of judge of the family court.)

Persons who may exercise jurisdiction of the family court

14.  Subject to the provisions of this Part or of any other enactment, any jurisdiction and powers conferred by any enactment on the family court, or on a judge of the family court, may be exercised by any judge of the family court.

Allocation of proceedings in Schedule 1

15.—(1) An application in a type of proceedings listed in the first column of the table in Schedule 1 shall be allocated to be heard by a judge of the level listed in the second column of that table.

(2) Paragraph (1) and the provisions of Schedule 1 are subject to the need to take into account the need to make the most effective and efficient use of local judicial resource and the resource of the High Court bench that is appropriate given the nature and type of the application.

Allocation of emergency applications

16.—(1) In this rule—

“the 1986 Act” means the Family Law Act 1986(18);

“the 1989 Act” means the Children Act 1989(19); and

“the 1996 Act” means the Family Law Act 1996(20).

(2) An application of a type referred to in paragraph (3) shall be allocated to the first available judge of the family court who—

(a) where applicable, is authorised to conduct the type of business to which the application relates; and

(b) would not be precluded by Schedule 2 from dealing with the application.

(3) The types of applications are those—

(a) under—

(i) section 33 of the 1986 Act(21) (disclosure of information as to the whereabouts of a child);

(ii) section 34 of the 1986 Act(22) (order authorising the taking charge and delivery of a child);

(iii) section 44(1) of the 1989 Act (emergency protection order);

(iv) section 44(9)(b) of the 1989 Act (varying a direction in an emergency protection order given under section 44(6) of the 1989 Act);

(v) section 45(4) of the 1989 Act (extending the period during which an emergency protection order is to have effect);

(vi) section 45(8) of the 1989 Act (to discharge an emergency protection order);

(vii) section 45(8A) of the 1989 Act(23) (to vary or discharge an emergency protection order in so far as it imposes an exclusion requirement on a person who is not entitled to apply for the order to be discharged);

(viii) section 45(8B) of the 1989 Act(24) (to vary or discharge an emergency protection order in so far as it confers powers of arrest attached to an exclusion requirement);

(ix) section 48(9) of the 1989 Act (warrant to assist in discovery of children who may be in need of emergency protection);

(x) section 50 of the 1989 Act(25) (recovery of abducted children);

(xi) section 102(1) of the 1989 Act (warrant for a constable to assist in the exercise of certain powers to search for children or inspect premises);

(xii) Part 4 of the 1996 Act(26) which are made without notice, except where the applicant is under 18 or where an application for an occupation order under section 33 of that Act requires a determination of a question of property ownership;

(xiii) section 41 of the Adoption and Children Act 2002(27) (recovery order); or

(xiv) section 79 of the Childcare Act 2006(28) (warrant for a constable to assist in the exercise of powers of entry); or

(b) which are not referred to in paragraph (a) but which require the immediate attention of the court.

(4) An application of a type listed in paragraph (5) shall be allocated to the first available judge of the family court, other than lay justices, who, where applicable, is authorised to conduct the type of business to which the application relates.

(5) The types of application are those under—

(a) Part 4 of the 1996 Act which are made without notice and where the applicant is aged under 18 or where an application for an occupation order under section 33 of that Act requires a determination of a question of property ownership;

(b) Part 4A of the 1996 Act(29) which are made without notice.

Allocation: applications in existing proceedings or in connection with proceedings that have concluded

17.—(1) Subject to paragraphs (3) to (5), an application made within existing proceedings in the family court shall be allocated to the level of judge who is dealing with the existing proceedings to which the application relates.

(2) Subject to paragraphs (3) to (5), an application made in connection with proceedings in the family court that have concluded shall be allocated to the level of judge who last dealt with those proceedings.

(3) In Schedule 2—

(a) the remedies listed in tables 1, 2 and 3 may not be granted by lay justices;

(b) the remedies listed in tables 2 and 3 may not be granted by a judge of district judge level;

(c) the remedies listed in table 3 may not be granted by a judge of circuit judge level, subject to any exception stated in that table.

(4) Where the effect of Schedule 2 is that an application for a particular remedy may not be granted by the level of judge referred to in paragraph (1) or (2), then that application shall be allocated to a level of judge who is able to grant that remedy.

(5) Any power of the family court to make an order for committal in respect of a breach of a judgment, order or undertaking to do or abstain from doing an act may only be made by a judge of the same level as, or of a higher level than, the judge who make the judgment or order, or who accepted the undertaking, as the case may be.

Allocation: costs

18.  Subject to any direction of the court, an application for detailed assessment of a bill of costs shall be allocated to an authorised court officer, a district judge or a costs judge.

Allocation: appeals

19.  An appeal shall be allocated to a judge in accordance with rules 5 to 7.

Allocation: all other proceedings

20.—(1) An application of a type not referred to in other rules in this Part or in Schedule 1 or Schedule 2 shall be allocated by one or more of the persons referred to in rule 4.

(2) When deciding which level of judge to allocate such an application to, the decision must be based on consideration of the relative significance of the following factors—

(a) the need to make the most effective and efficient use of the local judicial resource and the resource of the High Court bench that is appropriate, given the nature and type of application;

(b) the need to avoid delay;

(c) the need for judicial continuity;

(d) the location of the parties or of any child relevant to the proceedings; and

(e) complexity.

PART 6 GUIDANCE

Guidance on distribution of business of the family court

21.—(1) The President of the Family Division may, after consulting the Lord Chancellor, issue guidance on the application or interpretation of Part 5.

(2) Where the Lord Chancellor determines that the guidance has significant implications for resources, it may only be issued with the agreement of the Lord Chancellor.

(3) If the Lord Chancellor does not agree the guidance, the Lord Chancellor must provide the President of the Family Division with written reasons why the Lord Chancellor does not agree the guidance.

James Munby, P

President of the Family Division

30th March 2014

I agree,

Simon Hughes

Minister of State

Ministry of Justice

31st March 2014